Amendment to Definition of Acquiring Person. Section 1(a) of the Agreement is hereby amended to provide in its entirety as follows:
Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” in Section 1(a) of the Agreement is amended by inserting the following at the end of such section: “Notwithstanding anything in this Section 1(a) or this Agreement to the contrary, none of ETFS Capital Limited (“ETFS”), World Gold Council (“WGC”), Gold Bullion Holdings (Jersey) Limited (“GBH”), Rodber Investments Limited (“RIL”), or Xxxxxx Xxxxxxxx (“GT”, and together with ETFS, WGC, GBH, and RIL, collectively, the “SPA Parties” and each an “SPA Party”) nor any of their respective Affiliates or Associates, either individually or together, is, nor shall any of them, be deemed to be, an “Acquiring Person” solely by virtue of, or as a result of (i) the approval, execution, and delivery of the Sale, Purchase and Assignment Deed, dated as of May 10, 2023, by and between the Company, certain Affiliates of the Company and the SPA Parties (as it may be amended from time to time, the “SPA”), (ii) the public announcement or public disclosure of the SPA or any of transactions contemplated thereby, (iii) the issuance to GBH of, or the right to be issued, shares of the Company’s Series C Non-Voting Convertible Preferred Stock, par value $0.01 (the “GBH Shares”) pursuant to the SPA, (iv) the acquisition of, or the right to acquire, Beneficial Ownership by GBH of any shares of Common Stock of the Company issued or issuable upon the conversion of the GBH Shares pursuant to the Certificate of Designations of Series C Non-Voting Convertible Preferred Stock of the Company (the “Series C Certificate of Designations”), or (v) the performance or consummation of any of the other transactions contemplated by the SPA, including without limitation the Company and GBH’s entry into the Investor Rights Agreement (as that term is defined in the SPA) (the foregoing actions being referred to herein as the “Permitted Events”). Notwithstanding the foregoing and for the avoidance of doubt, an SPA Party shall be deemed an Acquiring Person if such SPA Party shall become the Beneficial Owner of any additional shares of Common Stock (other than pursuant to one or more Permitted Events or pursuant to a stock split, stock dividend or similar transaction) unless, immediately prior to the time, and as a result, of becoming the Beneficial Owner of such additional shares, such SPA Party, together with all Affiliates and Associates thereof, is not the Beneficial Owner of 10% (20% in the event that such SPA Party is then a 13G Investor) or more of the then outstandi...
Amendment to Definition of Acquiring Person. Section 1(a) of the Amended Rights Agreement is hereby amended to add the following sentence after the last sentence thereof which sentence was added pursuant to Amendment No. 3: Notwithstanding the foregoing, neither Second Holdco nor any of its Affiliates shall become an Acquiring Person as a result of the execution of the Second Merger Agreement or the consummation of the Second Merger by filing the Second Merger Agreement with the Secretary of State of the State of Delaware.
Amendment to Definition of Acquiring Person. The following provision is added as subsection (vii) to Article 1.1(a) of the Shareholder Rights Plan:
Amendment to Definition of Acquiring Person. Section 1(a) of the Rights Agreement is amended to add the following sentence after the last sentence thereof: “Notwithstanding the foregoing or any provision to the contrary in this Agreement, none of Sirius Satellite Radio Inc., a Delaware corporation, (“Sirius”), its Subsidiaries, Affiliates or Associates, including Xxxxxx Merger Corporation, a Delaware corporation and a wholly owned subsidiary of Sirius (“Merger Sub”), is, nor shall any of them be deemed to be, an Acquiring Person by virtue of (i) their acquisition, or their right to acquire, beneficial ownership of Common Stock of the Company as a result of their execution of the Agreement and Plan of Merger, dated as of February 19, 2007, by and among Sirius, Merger Sub and the Company (the “Merger Agreement”), (ii) the consummation of the Merger (as defined in the Merger Agreement), or (iii) any other transaction contemplated by the Merger Agreement, it being the purpose of the Company in adopting this amendment to the Agreement that neither the execution of the Merger Agreement by any of the parties nor the consummation of the transactions contemplated thereby shall in any respect give rise to any provision of the Agreement becoming effective.”
Amendment to Definition of Acquiring Person. The definition of “Acquiring Person” set forth in Section 1(a) of the Rights Agreement is hereby amended and supplemented by adding the following sentence to the end thereof: “Notwithstanding anything in this Agreement to the contrary, neither Parent, Sub nor any of its existing or future Affiliates or Associates shall be deemed to be an Acquiring Person solely by virtue of (i) the approval, execution or delivery of the Merger Agreement, (ii) the public or other announcement of the Merger Agreement or the other transactions contemplated by the Merger Agreement or (iii) the consummation of the Merger or the other transaction contemplated by the Merger Agreement (each of the events described in clauses (i), (ii) or (iii) an “Exempt Event”).”
Amendment to Definition of Acquiring Person. Section 1(a) of the Rights Agreement is amended to add the following sentence after the last sentence thereof: “Anything in this Section 1(a) or this Agreement to the contrary notwithstanding, none of Colonel Holdings, Inc., a Delaware corporation (“Parent”), Colonel Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), any stockholder of the Company party to a support agreement with Parent to be dated as of May 10, 2011 (collectively, as they may be amended from time to time, the “Support Agreements”) or any of their respective Affiliates or Associates, is, nor shall any of them be deemed to be, an “Acquiring Person” by virtue of (i) the execution of, or their entry into, the Agreement and Plan of Merger, to be dated as of May 10, 2011 by and among the Company, Parent and Merger Sub (as it may be amended from time to time, the “Merger Agreement”); (ii) the execution of, or their entry into, any of the Support Agreements; (iii) the execution of, or their entry into, any other contract or instrument in connection with the Merger Agreement or any of the Support Agreements; (iv) their acquisition or their right to acquire, beneficial ownership of Common Stock as a result of their execution of the Merger Agreement; or (v) the consummation of the Offer (as defined in the Merger Agreement) or the Merger (as defined in the Merger Agreement), in each case in accordance with, pursuant to, and on the terms and subject to the conditions set forth in the Merger Agreement; it being the purpose of the Company that neither the execution of the Merger Agreement or the Support Agreements by any of the parties thereto (after giving effect to any amendment to the Merger Agreement entered into by the Company and/or any amendment to a Support Agreement to which the Company has consented (such consent not to be unreasonably withheld, condition or delayed)) nor the consummation of the transactions contemplated thereby, in each case in accordance with, pursuant to and upon the terms and conditions of the Merger Agreement and the Support Agreements, shall in any respect give rise to any provision of this Agreement becoming effective.”
Amendment to Definition of Acquiring Person. The first sentence of Section 1(a) of the Rights Agreement is hereby deleted and replaced in its entirety with the following:
Amendment to Definition of Acquiring Person. Section 1(a) (ii) is amended by inserting the following paragraph at the end of such Section 1(a) (ii):
Amendment to Definition of Acquiring Person. (a) The definition of “Acquiring Person” in Section 1(a) of the Agreement is amended by inserting a new Section 1(a)(vii): “Glencore Canada Corporation (“Purchaser”) or its Affiliates or Associates (such Persons together, “Glencore”), either individually or together solely by virtue of, or as a result of (A) Glencore’s beneficial ownership of Common Shares issuable upon conversion of the convertible notes in the aggregate principal amount of $200 million due in 2027 plus any accrued and unpaid interest (as such notes may be amended and restated from time to time, the “2027 Notes”) issued pursuant to that certain note purchase agreement, dated as of May 5, 2022 (the “2022 Note Purchase Agreement”), by and between the Company and an Affiliate of Purchaser, including such Common Shares issuable pursuant to the Company’s right to elect to pay interest in-kind pursuant to the terms of the 2027 Notes, or the issuance to Glencore and the exercise of any warrants upon the redemption of the 2027 Notes in accordance with the terms of the 2027 Notes; (B) the valid and binding approval, execution, and delivery of a note purchase agreement, to be entered into on or around March 11, 2024 (the “2024 Note Purchase Agreement” and together with the 2022 Note Purchase Agreement the “Convertible Note Purchase Agreements”), by and among the Company, Purchaser and an Affiliate of Purchaser to issue to Purchaser a senior secured convertible note due March 2029 in the aggregate principal amount of $75,000,000 (the “2029 Note” and together with the 2027 Notes, the “Convertible Notes”) and the issuance of the 2029 Note to Glencore; (C) the issuance to Glencore of Common Shares upon conversion of the 2029 Note, in whole or in part, in accordance with the terms and conditions thereof, including any such Common Shares issued in connection with any interest the Company elects to pay in-kind; (D) the issuance to Glencore and the exercise of any warrants upon the redemption of the 2029 Note in accordance with the terms and conditions thereof; and (E) the performance or consummation of any of the other transactions contemplated by the Convertible Note Purchase Agreements or Convertible Notes (the foregoing actions being referred to herein as the “Permitted Events”); provided however, that notwithstanding the foregoing and for the avoidance of doubt, Glencore shall be deemed an Acquiring Person if Glencore shall become the Beneficial Owner of such number of additional Common Shares represe...
